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An anonymous reader writes in with new developments in a two-year-old spat between YouTube and GEMA (a German music royalty collection foundation). After the courts ordered YouTube to implement tools to block videos that contained music GEMA licenses, it seems that telling users why content was blocked isn't making GEMA happy. From the article: "GEMA applied for an injunction to force YouTube to change the messages, claiming that they misrepresent the situation and damage GEMA’s reputation. YouTube alone is responsible for blocking the videos, claiming otherwise is simply false, GEMA argued. ... Yesterday the District Court of Munich agreed with the music group and issued an injunction to force YouTube to comply, stating that the notices 'denigrate' GEMA with a 'totally distorted representation of the legal dispute between the parties.' Changing the message to state that videos are not available due to a lack of a licensing agreement between YouTube and GEMA would be more appropriate, the Court said."
The messages currently reads, "Unfortunately, this video is not available in Germany because it may contain music for which GEMA has not granted the respective music rights." Seems pretty neutral. Non-compliance with the order could result in fines of €250,000 per infraction.

GEMA tells YouTube to block the videos, YouTube does, and GEMA complains that YouTube is actually telling the users why they're blocked instead of telling them how awesome GEMA is(n't). This seems about as reasonable to me as Breivik complaining that he isn't getting blowjobs in that cushy Norwegian jail he's in for 2 years or whatever.

Or maybe, for maximum bad taste comedic effect, "We have been ordered by a German court to say that "videos are not available due to a lack of a licensing agreement between YouTube and GEMA", and as a mark of our respect to the German legal system, we are only following orders when we show this message to you."

With the current wording GEMA looks like the bad guy. What if it read "Unfortunately, this video is not available in Germany because Youtube will not come to agreement with GEMA."? Then youtube would look like the bad guy. "... lack of a licensing agreement between YouTube and GEMA..." would be neutral.

EU isn't a country, and yes, free speech is protected as a human right. You can insult famous people in Britain all you like, as long as you don't allege something about them which is not true. The problem is how Britain's libel laws favor ligitive rich accusers, but Britain is hardly the only places that favors rich, ligitive bastards.

EU isn't a country, and yes, free speech is protected as a human right. You can insult famous people in Britain all you like, as long as you don't allege something about them which is not true. The problem is how Britain's libel laws favor ligitive rich accusers, but Britain is hardly the only places that favors rich, ligitive bastards.

I think the problem from most people's perspective is that historically the truth was not an affirmative defense against libel in Britain. I know there are many aspects of US culture that have others roll their eyes about, but this is one case where the situation was reversed.

Seems they had a new law go into effect in January, though. The blurb [jdsupra.com] mentions truth as a defense, so perhaps things are improving over there.

See European Union Charter of Fundamental Rights, Title II Article 11 Paragraph 1:"Article 11Freedom of expression and information1. Everyone has the right to freedom of expression. This right shall include freedom to holdopinions and to receive and impart information and ideas without interference by public authorityand regardless of frontiers."

In places where the restrictions on speech are broadly defined and allowed explicitly in the constitution, then there is less room for judicial review because judges are judging the law against whether it reasonably falls under one of the exceptions rather than judging the law against whether it is "abridging the freedom of speech" which is clearly and logically a much higher standard of judicial review.

So for instance a judge in the US would look at a law like "Publicly questioning the integrity of a public official shall be punished by a fine of no more than $500" and ask the question first "Does this abridge freedom of speech?" Where in Germany they might ask first whether this restriction falls under "protection of the reputation or rights of others" or does the law serve "the prevention of disorder".

This exception language is pretty much the same language that the UN adopted under which all manner of despots around the world are claiming to be suppressing speech in the name of public order. Of course the "public order" despots are protecting is the order of keeping themselves and their cronies at the top and the rest of society as their slaves.

Then why did you bring up the US as an example? The US has only conditional "free" speech.

On paper, the USA has some of the freest speech in the world. We have the legal (constitutional!) right to record the police, for example, though I get at least one news item a week about someone being arrested for doing just that eventually they are exonerated.

We have lots of jackboots here, but the law is still favorable in this particular area.

Notably, Britain doesn't extend free speech protection to visitors. You can no longer be done for seditious speech as a citizen (unless you're actually planning so

Defamation law distinguishes between ostensibly-editorial and ostensibly-factual content, even in the US. The notice is ostensibly factual, and a lot will rest on its accuracy. Ironically if Youtube had made it say "GEMA are a bunch of fat jerks" it would've been perfectly defensible.

Ironically if Youtube had made it say "GEMA are a bunch of fat jerks" it would've been perfectly defensible.

Close.

It should have said something like "we think GEMA are a bunch of fat jerks" to make clear it is an opinion, not a fact, and then it'd be defensible under freedom of expression rights.

The way you state it, it is presented as a fact, in which case GEMA can sue for defamation. Which is exactly what they did in the actual case, as the Google message is presented as a fact, which GEMA thought (and the court agreed with) to be untrue.

Youtube has a right to not be neutral. It is their website, and they have the free speech rights to portray GEMA however they like, in their publications.

No they don't. They might, though it is unlikely, be allowed to do that in your little bit of the world but they aren't in Germany; that should have been reasonably obvious from the fact the court just ruled it that way. The world doesn't, in fact, exist purely as you think it should.

OK, you have to use a bit of legalese nitpicking to the original statement, but if you watch really closely, the original statement indeed is false.

It says that the GEMA did not GRANT the rights. Which is not correct as in exchange for their legal monopoly the GEMA has, it has the legal duty to grant the rights to anyone. The real problem is that the two partys can't agree on a price.

GEMA's stance is #@!&. Once you're a member you aren't even allowed to make your own material freely available. Your IP isn't your own any more, it will belong to GEMA and you will be charged with copyright infringement although you're the creator.

Have you ever heard of the Safe Harbor [cornell.edu] provision of the DMCA?

That's a law designed to prop up a flawed business model: "we can't afford to do it right, so please exempt us from copyright" and many countries have no similar laws... eg Germany.

My argument since the founding of YouTube has always been the same: printers vs publishers vs editors.

Is a printer liable for any damages if they print infringing/defamatory/otherwise-illegal material in a newspaper? No, they're a printer. They get a file and push it through the rollers. They are not expected to read it.

I actually believe copyright law is valuable and has a place, when appropriately balanced, but it's tilted so far in favor of content owners right now, and the record labels and their associations are so abusive, that my starting position is always to assume they're in the wrong.

(Disclaimer: I happen to be a Google engineer, but I don't speak for Google and Google doesn't speak for me. In addition, my opinions on this matter long pre-dated my employment at Google -- in fact they're derived primarily from the year I spent working for Universal Music Group. Based on what I learned there, if you assume in any dispute that the labels are being slimy and abusive, you're basically always right.)

I actually believe copyright law is valuable and has a place, when appropriately balanced, but it's tilted so far in favor of content owners right now, and the record labels and their associations are so abusive, that my starting position is always to assume they're in the wrong.

I have a lot of sympathy with that point of view. On the other hand, with on-line copyright infringement, we're also talking about an activity that is ripping off the legal rightsholders left and right, yet which isn't considered a criminal activity in the way that for example theft or fraud would be.

The barriers to cost-effective enforcement as the law was originally envisaged are often prohibitively high in the context of mass distribution over the Internet. Meanwhile, you only have to read Slashdot for f

There is no burden of proof on GEMA, they can demand the takedown of any video, whether it contains something they hold rights to or not. Thus, "it may contain" is the strongest thing Google can say. It is also the undeniable truth that Youtube does not have a license, as such, it's 100% correct that GEMA hasn't granted one. It's true no matter what the demands are on either side.

Youtube has no obligation to paint GEMA in a favorable light, as long as their statements are true. They can say GEMA are evil, u

Youtube has no obligation to paint GEMA in a favorable light, as long as their statements are true. They can say GEMA are evil, unreasonable greedy misers, and it would be perfectly legal free speech (as it should be).

And yet here we are, with a court ruling they can't. Imagine which version of 'legal free speech' I'm going to assume applies a) a court in the country b) a/. poster who disagrees.

YouTube are right to pass the buck to GEMA. I've been living in Germany for 6 months after having lived in the UK all my life, and only having very rarely seen videos blocked by the UK music industry, almost all of the videos I try to watch on Facebook or similar (usually viral videos) are blocked. GEMA need to get with the times and realise they can't staunchly deny the internet the right to use its clients' music.

GEMA need to get with the times and realise they can't staunchly deny the internet the right to use its clients' music.

Or Youtube need to stop profiting off providing unlicensed music? I'd have more sympathy for Google if they weren't primarily supporting copyright infringement because they profit from it. If Google were willing to sacrifice all earnings made from adverts shown on pages/videos with unlicensed content then I'd have some reason to believe they were being neutral.

GEMA need to get with the times and realise they can't staunchly deny the internet the right to use its clients' music.

Why not? The law seems to say they have every right to do that. There are plenty of reasonable arguments for changing laws, but unless and until that happens, "the Internet" doesn't have the automatic right to enjoy others' copyrighted works whenever it feels like it for free.

Google is right because the message they display is right - or, at least, is not wrong. GEMA may not like it, and may feel offended, but YouTube is pushing to offer a service that requires users to *not* pay anything. GEMA fights against this, and Google explains that action clearly in their message.

Why are these videos blocked? Are they being blocked at the request of GEMA? If so then it's entirely on GEMA. They just aren't man enough or honest enough to stand behind their decision. The fact that a judge is willing to side with them on this nonsense is just appalling.

No they aren't. GEMA is asking Youtube for money to license the content and Youtube won't pay it so THEY remove the content instead. GEMA isn't asking that the video is blocked, and would much prefer that they got paid instead. Now we can debate if the fee GEMA wants is reasonable, but it isn't them asking for it to be taken down.

First of all you are incorrect. They are willing to pay, not just a flat fee that may be more than what uses generate, they want a better percentage fee that can go up and down. Do try to learn to read.

In addition GEMA is the one forcing youtube to block the videos, therefore the statement is 100% accurate.

Is that one of those agencies that claims a blanket right to, and gathers licencing fees for, the works of every single person working in a particular field? Whether they're a royalty-receiving member or not?

I believe that you're wrong there. The law doesn't specify an organization at all, only that organizations representing large a number of Swedish authors have the right to demand compensation. You could create a competitor to Copyswede if you wanted.

I'm an American who lives in Germany, and this all doesn't add up - practically all of the YouTube content that I want to see see that instead has this GEMA message is AMERICAN content. GEMA certainly doesn't own the rights to much, if any of it. I've always had the understanding that somehow German agencies haven't paid the American fees to play licensed content, or something. It's an entirely different message if I want to watch, say, Swiss content that also is not properly licensed here.

They don't own it but they have most likely licensed it for your region. That's unfortunately how the music business work. Content is created somewhere, then licensed to other companies around the world and they in turn handle local distribution.

You're right. They don't own it, but they are licensed to be the royalty collection entity in Germany. You'll find the member organizations to be the same or a cross-section of ASCAP members in the USA.

In the USA, music royalties are collected and distributed back to publishers and/or artists by ASCAP or BMI. In Germany, it's GEMA. In just about every country in the world, it's a different royalty collection process and licensing entity [wikipedia.org], just like it's a different copyright and distribution process.

This is the fundamental reason why music and video content has been so problematic in the era of the truly global internet. There are billions upon billions of dollars invested in the archaic business models, contracts, organizational infrastructure, and jobs to support the legacy model of content consumption that had been built up over nearly a century. The internet came along and destroyed it all in about a 5 year span.

What are you talking about? Nowhere does it say that the licenses have to be free. People could pay the license fee and upload to youtube. GEMA is, however, entirely responsible for claiming they own the music. In many cases, I bet they don't

I didn't. Those were opposite sides of the argument. I'm suggesting that the overwhelming majority of people they go after probably are infringing and thus, legally speaking, legitimate targets. That contradicts the position that in many of those cases they don't have the rights they claim to have, unless you want to interpret "many" according to some absolute, small scale without reference to the overall situation.

Many is subjective, you assumed that the author meant many as in most, which then he would have probably used most and not many. Many people use the word many to describe something between 10% and 49%.

"This video has been removed due to containing Music Licensed by GEMA"

That statement is false, and should never be used for a blocking notice. Blocking is done automatically without anyone verifying it really contains infringing music. It is also NOT licensed by GEMA, which is the whole point of the issue, that licensing agreement is not there.

At least something like "we think that it contained music", as no-one verified that it really is an infringing track. That's part of the issue with your message.

And it's also not "will not license" as GEMA has made an offer to license it to YouTube, and presumably YouTube made a counter offer, and for whatever reason they can not agree to the licensing terms. So "YouTube will not license" would be as true as "GEMA will not license".

I am certain that any notice that mentions that GEMA has requested the vid be blocked will not be allowed.

Which is pretty much what they were complaining about. YouTube has blocked the video because they fear - usually quite correctly - that it contains music which GEMA hasn't granted them a license for. Digging a little deeper I'm starting to agree with GEMA on this one, it seems the bad press really started when a webcam feed from the Kiev protests was blocked by YouTube's automatic scanner. If this was because copyrighted music was heard on the feed or it was just a glitch or whatever is not certain, what is

No one said they have to licence it for free. The debate between Google and Gema revolves around technicalities of payment. Most other royality collectors agreed to get an undisclosed percentage of advertisement earnings for the licences, but GEMA insists on a flat fee, regardless of amount of viewers etc. of a particular track. AFAIK GEMA is the only royality collector worldwide insisting on that.

Who says anything about "free"? Like all copyrights, the owner must grant permission for the material to be used. The person who posted the video may not have had rights to GEMA's music and thus GEMA filed a notice to remove the video. Period. It seems to me that GEMA is so sensitive about them being identified as the complainant.

Their current statement is in no way neutral. It implies that GEMA is entirely responsible for not giving out licenses to their content for free, and that YouTube/the video's author have no responsibility to pay for music at all.

I was about to post something similar to this. Saying that the video is blocked because GEMA hasn't granted the relevant right puts the blame at GEMAs door, when the reality is that the person responsible for uploading the video hasn't actually asked GEMA for a licence. The onus is on the uploader to ask GEMA for a licence, not on GEMA to seek out people using material they're in charge of and then give them a licence. Saying that GEMA "hasn't granted the rights" implies that they were asked to do so, wh

I haven't asked you for a sandwich, and it is not your responsibility to ensure I have sandwiches, but somehow you're getting brought into my "no sandwich" fiasco.

I'm also not eating because Will Smith, Lance Armstrong, Tiger Woods and every single one of the damn Kardashians . They also have nothing to do with anything, but I'm calling them out too, because its an indisputable fact that not one of them have ever given me a single sandwich, when it i

The GEMA is the organization who sole purpose of being is to license rights to broadcaster.Thus the statement is correct: The GEMA would be the one who has to granz a license, and no such license was granted (as of now). The statement does NOT say that the GEMA refused to grant a license. That would be a lie, but that's not what YT says.

YouTube doesn't block videos in the US containing copyrighted music. Instead, it adds ads to the video and a little "buy it on iTunes" (or whatever) link. I'd presume that some of the ad dollars are kicked back to the MPAA or other relevant racket organization in addition to the free advertising 'buy' link as payment use of the music.

Given that apparently Grooveshark pulled out of Germany because of GEMA's fees, I imagine that YouTube is encountering the same issue: GEMA wants too much money per view than

LOLWAT? Youtube takes down thousands of videos per day from automated music recognition bots run by the cartels. Hint: If you post a video of your kid doing something, make sure there is no radio playing in the background.

So if someone in Germany uploads a video containing copyright material from GEMA, Youtube should pay a fee?

I don't know what the law says in Germany, but that's not entirely unreasonable as a premise. It's not a self-evident truth that sites hosting user-submitted content like YouTube should get a free pass for what would otherwise clearly be infringing redistribution under some sort of safe harbour rule, even if that's the way many western states have decided to handle the issue for now.

If GEMA themselves uploaded the content with the intent that YouTube would redistribute it, then clearly they can't turn round and argue that YouTube was acting without consent when that redistribution happens.

The thing is, with the exponential distribution potential and the speed of the modern Internet, taking something down 24 hours after it goes up has little value if 90% of the people who wanted to rip it already did anyway. When the current copyright frameworks were established, that kind of near-instantaneous, near-effortless, widescale distribution of a work simply wasn't practical, and no-one designed the system to allow for it.

You're right; so we either need to revamp copyright frameworks, or give up on using the Internet. Guess which one I pick?

In all seriousness, both RIAA and MPAA have been asking for some magic-ass technology that we technologists keep telling them is not possible due to the halting problem, and they keep insisting that we magically solve the halting problem for them. Then they ask that we implement DRM that actually works so that they don't have to change their business model, even when we tell them, again

Not raping, pillaging, and burning is more honorable behavior for invading soldiers. Agree?

That doesn't imply that raping is honorable. Doesn't even imply that it's possible to be a truly honorable invading soldier. Just that on a spectrum from "bastion of honor" to "honorless slime", raping and pillaging makes you less honorable.

How about "This video is available in other countries besides Germany because the copyright holders in those countries are more reasonable than GEMA has been"? Does it say something that other music companies are calling out GEMA [wikipedia.org]:

“I suspect that some members of GEMA’s supervisory board have not yet arrived in the digital era. We want to see streaming services like VEVO and Spotify in the German market. Spotify must not be blocked by GEMA any longer. Artists and music companies are losing sales in the millions”.

Neutral is in the eye of the beholder. In this case, the statement is entirely factual. GEMA has, in fact, NOT granted the rights. It is actually the youtube poster who is required to obtain (what I assume is the German equivalent of) synchronization rights in order to post the video. Youtube has found it in their commercial interest to secure those rights in the video poster's stead where they can. However, the right - BECAUSE IT IS NOT STATUTORY* - is solely at the whim of GEMA. Youtube may have offered them less than they wanted, or less than they felt was fair compensation. It doesn't matter - GEMA grants or does not grant; it is not Youtube has no say in the rights granting process. Youtube could offer them $100 per play, and GEMA could still say no, because is their right.

*I presume that US and German copyright law is similar; if it is statutory then the above is not as compelling. Note that in the US, some broadcast and all mechanical licensing IS statutory, and rights holders have no say, but synchronization (video rights) is different.

Unfortunately, this video is not available in Germany, because it possibly contains music for which the necessary music rights weren't granted by GEMA. (My own translation, although a native German speaker would be better).

It seems like the English that was previously posted matches the meaning very closely (IMO).